Judicial activism and rights

Judicial activism and PIL. Normally only a person who is personally aggrieved can go to court. Around 1979, the Supreme Court began hearing cases filed by others on behalf of the aggrieved, on issues of public interest. These became known as Public Interest Litigation (PIL) or Social Action Litigation (SAL), the main vehicle of judicial activism. The Court even began acting on newspaper reports and letters.

Early PILs:

• In 1979, newspapers reported that many undertrial prisoners in Bihar had spent longer in jail than any sentence they could have received. An advocate filed a petition: the Hussainara Khatoon vs. Bihar case, one of the earliest PILs.
• In 1980, a prisoner in Tihar jail managed to send a scribbled note to Justice Krishna Iyer about the torture of prisoners; the judge turned it into a petition: Sunil Batra vs. Delhi Administration. (The Court later stopped treating letters as petitions.)
• As Justice Bhagwati said in 1984, the problems of the poor are different, and need a different judicial approach.

Effects of judicial activism:

• It expanded the idea of rights: clean air, unpolluted water and decent living are rights of the whole society, so individuals may seek justice when they are violated.
• It gave access to courts to those who cannot easily approach them, allowing citizens, organisations and lawyers to petition for the needy; courts heard cases on the blinding of prisoners by police, inhuman conditions in stone quarries, and exploitation of children.
• It democratised the judicial system, forced executive accountability, and tried to make elections fairer: candidates must file affidavits on their assets, income and education.
• Other countries, especially in South Asia and Africa, have adopted similar practices; South Africa made PIL a constitutional right.

The costs: PILs have overburdened the courts, and judicial activism has blurred the separation of powers: courts have entered matters such as reducing pollution, investigating corruption or electoral reform, which belong to the executive under legislative supervision. This strains the principle that each organ respects the others' powers.

Two ways the courts protect rights:

• Writs: the Supreme Court (Article 32) and High Courts (Article 226) can issue writs such as habeas corpus and mandamus to restore Fundamental Rights in specific cases.
• Judicial review: the Court can declare a law unconstitutional and inoperative (Article 13). The term 'judicial review' is not in the Constitution, but a written constitution and the power to strike down laws violating Fundamental Rights give it implicitly. It covers laws that violate Fundamental Rights or the federal distribution of powers (for example, a central law on a State List subject), and applies to state laws too.
• Together, writ and review powers make the judiciary the protector of rights and interpreter of the Constitution.

Example (new): residents of a town where a factory pours waste into the river may, through a lawyer or an NGO, file a PIL claiming that the right to life includes clean water, even though no single resident could afford to fight the case alone.